Capron v R
| Jurisdiction | UK Non-devolved |
| Judge | Lord Rodger of Earlsferry |
| Judgment Date | 29 June 2006 |
| Neutral Citation | [2006] UKPC 34 |
| Court | Privy Council |
| Docket Number | Appeal No 32 of 2005 |
| Date | 29 June 2006 |
[2006] UKPC 34
Present at the hearing:-
Lord Bingham of Cornhill
Lord Hoffmann
Lord Hutton
Lord Rodger of Earlsferry
Lord Carswell
Privy Council
Delivered by Lord Rodger of Earlsferry]
On 17 October 2002 the appellant, Mark Anthony Capron, was convicted in the Supreme Court of murdering Andrew Simms Ferguson. He was sentenced to death. On 25 February 2004 the Court of Appeal (Churaman, Ganpatsingh and Osadebay JJA) dismissed his appeal for reasons which they gave in writing on 28 April 2004. On 21 October 2004 the Board recommended that special leave to appeal should be granted.
The incident occurred in broad daylight on the morning of 6 March 2001 in Johnson Alley, otherwise known as the Corpect, in Nassau. The alley runs off Wulff Road and the incident took place towards the other end of the alley. The exact circumstances leading to the murder are somewhat unclear, but there appears to have been an argument between Jermaine Hepburn (also known as "Bingy") and Irvin Brown. According to the Crown witness, Gregory Ferguson, Bingy had a knife. A scuffle broke out between Bingy and Brown. The deceased was present. Gregory Ferguson said that the appellant came across the street with a gun, took hold of the deceased by the neck and shot him. He then ran after Irvin and shot at him. The appellant came back and fired another shot at the deceased who was lying on the ground. By reference to distances in the court, it appears that the witness indicated that he was about 40 feet away from where the deceased was shot. Ferguson said that he had grown up with the appellant and had known him for 8 to 9 years or more. During that period he would see the appellant sometimes twice a day, almost every day. The witness identified the appellant in the dock.
The other eye witness was Irvin Brown who also gave evidence for the Crown. He spoke to meeting up with Bingy and to having got into a fight with him. Brown said that the appellant came running down the road, pulled out a gun and shot the deceased twice at point blank range. When Brown tried to help the deceased, the appellant began firing at him and he ran for his life round the back of a neighbouring house. According to Brown, when the deceased tried to get up, the appellant shot him again: there were only about 12 or 13 seconds between the two shots. Brown said that he had known the appellant, whom he identified in the dock, for about 16 years. For the first 5 or 6 years he would have seen him just about every day, on and off. Latterly he would see him about 3 times a month when he went to see the mother of his daughter who lived in the vicinity of Johnson Alley. Brown too identified the appellant in the dock.
The cross-examination for the defence was to the effect that the witness and some other men had attacked the deceased in connexion with a drugs matter and that he had given the appellant's name to the police as the person who had killed the deceased in order to divert attention from himself and the other members of his group. The witness repudiated the suggestion and said that he had seen the deceased getting shot in the face "clear as day". After that the appellant had turned the gun on the witness when he was close to him and facing him. The appellant fired two or three times and the witness took off running, with the appellant pursuing and saying he would kill him.
Before turning to the defence evidence, it is convenient to deal with a ground of appeal, arising out of the evidence of Ferguson and Brown, which Mr Wynne Jones advanced briefly on behalf of the appellant. He submitted that in the trial the judge had been wrong to repel counsel's objection to these witnesses being allowed to make a dock identification of the appellant when they had not previously identified him at an identification parade. He referred to the observation of Lord Hoffmann in Goldson and McGlashan v The Queen ( unreported) 23 March 2000, PC:
"Their Lordships consider that the principle stated by Hobhouse LJ in R v Popat [1998] 2 Cr App R 208, 215, that in cases of disputed identification 'there ought to be an identification parade where it would serve a useful purpose', is one which ought to be followed. It follows that, at any rate in a capital case such as this, it would have been good practice for the police to have held an identification parade unless it was clear that there was no point in doing so. This would have been the case if it was accepted, or incapable of serious dispute, that the accused were known to the identification witness."
In the present case the appellant did not dispute that the two witnesses knew him and had done so for many years. His position was simply that they were lying when they gave evidence identifying him as the person who had carried out the shooting. Defence counsel conducted the trial on that basis. This is accordingly the kind of case, envisaged in Goldson and McGlashan, where holding an identification parade for these witnesses would have served no useful purpose and where their dock identifications did not carry the risk that they might have been influenced to identify the accused simply because he was sitting in the dock. Similarly, there was no need for the judge to give the jury the kind of direction about the dangers of a dock identification envisaged in para 8 of the judgment of the Board in Pop v The Queen ( unreported) 22 May 2003, PC. The judge was therefore correct to repel the objections and this ground of appeal must be rejected.
At the trial the appellant did not give evidence but made a statement from the dock:
"On that morning, right, I just was going to the doctor, and I stopped to hail my uncle. We were talking for a little while on a porch. We heard a few shots and I went – my uncle tell me he was getting ready to go up the road by Percy Munnings, so he went walking to the corner and I went on the bus. Before I went on the bus, I saw when the police car came through the corner, but I didn't really go in the back to see what happened. Like I say, I didn't do nothing to no one. I didn't hurt no one like that. I never own a gun in my life, so I don't know why they are accusing me of a crime I have no knowledge of. I don't know why they are accusing me of something I didn't do."
In effect, he said that, at the time when the murder took place, he was talking to his uncle on the porch of his uncle's house on Wulff Street.
Jermaine Hepburn, Bingy, gave evidence for the appellant. He said that he had been standing by a car which was parked on one side of Johnson Alley when Brown walked behind him and tried to choke him. He saw the deceased come walking. "But this fella who they get right there [referring to the appellant in the dock], he was on the corner talking to his uncle when Irvin – when he hold up on me. I heard all kind of gunshot firing. When I break off running and I come back to the scene, all I see is the fella who got shot on the ground." It was put to him "You never see who fired off the shot" and he replied "Yes." A little later he said "When I began running, I run past Mark still sitting down because when I saw Mark he just stand up and looked. He was always on that porch with his uncle Larry." In cross-examination the following exchange took place:
"Q So you only saw him once?
A Only once.
Q So when you ran pass the porch you didn't see him?
A No. After I got grazed and I ran back to the corner, that was
when he was still sitting on the porch.
Q So during the morning, how many times did you see him?
A Twice. The first time he gone to his uncle and when I got
grazed, that is when I got grazed…."
The witness said that the house where the appellant was sitting on the porch was up to the front on the Wulff Road side. He indicated that the corner, by which he appears to have meant Johnson alley running down from Wulff Road, "was a long corner". The judge asked him "When you heard the shots, were you able to see Mark at that time?" to which he replied "No." The prosecutor put it to him that he didn't know who fired the shots and he replied "No." She then put it to him that he could not say whether it was Mark who fired the shots, to which he replied "No, ma'am." A little later came the following exchange:
"Q So you can't say to this Court who in fact shot the deceased?
A All I see was gunshot fire, and when I run, I run past the same porch that Mark was on.
Q You were involved with the fight with Irvin?
A Yeah, he was holding me like this and I was just trying to
get to him.
Q And at that present time you don't know where Mark was?
A No."
The first matter to which the Board must turn arises out of the judge's handling of the identification evidence in her summing-up. In particular, she did not give the warning envisaged in R v Turnbull [1977] QB 224. Immediately after she had completed her summing-up, counsel for the prosecution mentioned that she had not given a Turnbull warning in the form appropriate for a witness who claims to have recognised the perpetrator of the crime. The judge said:
"I am not going to give the Turnbull warning. It is not a Turnbull case. This is whether or not they are lying. It's not mistaken identity. There was no allegation. I considered that and I decided not to do it."
Among the amended grounds of appeal in the Court of Appeal the fourth was "The learned trial judge erred in law when she failed to adequately direct the jury on the defence of alibi" and the fifth was "The learned trial judge erred in law where she failed to give the Turnbull warning to the jury in cases of identification by recognition." In their written reasons, however, the Court of Appeal recorded that, while counsel had raised a number of grounds in his notice of appeal, as the arguments...
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